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US Supreme Court Accepts Microsoft Appeal in i4i Case


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: November 29, 2010 @ 11:32 am
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Earlier today the United States Supreme Court granted certiorari in Microsoft Corporation v. i4i Limited Partnership, with Chief Justice John Roberts taking no part in the decision or petition. The Supreme Court did not request the views of the Solicitor General, choosing rather to accept the matter with no input from the United States government.  The decision to grant cert. comes only days after the United States Patent and Trademark Office refused to grant reexamination of the patent in question.

Microsoft had filed an ex parte reexamination request on the patent in question, US Patent No. 5,787,449. The ’449 patent exited reexamination unchanged. Microsoft then filed a second ex parte reexamination request, and it is this second request that was denied by the Patent Office on Wednesday, November 24, 2010. The denial of this second request means that the Patent Office did not believe there to be a substantial new question of patentability.

The request for the Supreme Court to take the case is based upon Microsoft’s urging the Supreme Court to chip away at the presumption of validity enjoyed by a patent. Microsoft would prefer a rule that prior art not considered by the Patent Office should be treated differently than prior art considered by the Patent Office. Presently, in order to invalidate a patent claim there needs to be clear and convincing evidence presented at trial, regardless of whether the prior art offered at trial was considered by the Patent Office.

Microsoft would like to see that changed, with prior art not considered by the Patent Office requiring a lower evidentiary threshold to invalidate. Regardless, whether the evidentiary threshold changes or not it would appear as if Microsoft will still have its back up against a wall because if the Patent Office allowed the ’449 patent to exit reexamination and then denied the second reexamination request, this suggests that even references not originally considered by the Patent Office are of no help to Microsoft.

In terms of the history of this case, it was back on August 11, 2009, that the United States District Court Judge in the Eastern District of Texas issued its final order. In addition to losing approximately $300 million, Judge Leonard Davis also entered a permanent injunction that was to become effective 60 days from the judgment date, ordering Microsoft to cease selling the ubiquitous word processing program Word. On August 21, 2009, the United States Court of Appeals for the Federal Circuit issued an Order granting Microsoft an expedited appeal of its patent infringement loss to i4i Limited Partnership. The Federal Circuit granted the stay of the permanent injunction on September 3, 2009, pending hearing of the appeal. Oral arguments were also granted in expedited fashion, and were held on September 23, 2009. On December 22, 2009, the Federal Circuit issued its decision upholding Judge Davis’ decision with one small exception. The Federal Circuit found the 60 day period in which the injunction was to become effective too short, instead preferring to give Microsoft 5 months to comply with the permanent injunction, which meant that the permanent injunction went into effect on January 11, 2010.  For more see: i4i Victorious at CAFC, Microsoft Word Enjoined Jan. 11, 2010 and CAFC Puts Coal in Microsoft’s Stocking by Affirming $240 Million Damage Award and Permanent Injunction

This is Microsoft’s last hope in the i4i case.  While I think a ruling as requested by Microsoft would lead to a great number of unintended consequences, I think there is a better than even chance that the Supreme Court will indeed rule that prior art not considered during prosecution can be considered de novo during litigation proceedings.  I personally believe it is rather ridiculous to presume a patent valid based on prior art never considered, but such a rule would enormously complicate patent prosecution and make patent attorneys more likely to bury the Patent Office with references than ever before.  There would be no winners, only losers, but that hasn’t stopped the Supreme Court from doing the wrong thing in the past.

For a discussion of the issues that will be before the Supreme Court please see my interview with Mark Lemley, who is a Professor of Law at Stanford University.  Lemley filed a brief arguing that the Supreme Court should take the issue.  I have always believed that the Supreme Court would take the case, even more so after I read Lemley’s brief.  Now I fear they will do the wrong thing and further whiddle away at the value of a patent by chipping away at the fundamental presumption of validity.  While that could make sense as part of a comprehensive patent reform effort that would at some point settle the rights of the patent and make the claims no longer susceptible to challenge after a prescribed number of years, what is needed is a thoughtful approach that takes into consideration the realities of inventing, the realities of preparing and prosecuting patent applications, the burdens already placed upon the Patent Office and the need for innovators to have a certain and settled right that is quieted from challenge.  The Supreme Court cannot undertake such a comprehensive reform in only one case limited by the facts and procedural realities.

We need to address the issues raised, and a good many others, as part of real and legitimate patent reform, not hodge-podge nonsense that is all but certain to come from a Supreme Court decision on a rather narrow evidentiary matter that will have enormous and ill-understood consequences.  The ripple effect through patent law will be akin to a tsunami.  The worst part is that any ruling in favor of Microsoft won’t likely benefit Microsoft in terms of a positive ultimate outcome to this case in any event.

Based on the fact that Microsoft is alleging invalidity of the i4i claims pursuant to a 102(b) on-sale bar, See Microsoft’s Petition for Writ of Certiorari, it seems a stretch to believe they could have prevailed even under a lower threshold given that they were unable to produce evidence regarding the alleged prior sale.  To be sure, the lack of evidence was as the result of i4i not being able to produce the source code of the alleged 102(b) prior sale, but a lack of evidence is a lack of evidence it seems to me whether the standard is clear and convincing or something less.  Of course, that will be front and center in the case at the Supreme Court.

To stay abreast of the latest developments see:  Articles Tagged i4i.

UPDATED: 11:40 am ET (adding mention to fact that Solicitor General was not requested to weigh in)

UPDATED: 1:20 pm ET (revising discussion on relevance of PTO denying reexam and adding discussion of alleged 102(b) infringing sale, as pointed out in comment 2 below)

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Posted in: Companies We Follow, Gene Quinn, IP News, IPWatchdog.com Articles, Microsoft, Patents, Reissue & Reexamination, US Supreme Court

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

 


145 comments
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  1. Gene, the prior art involved in the Supreme Court petition wasn’t before the PTO in re-exam either. Microsoft is arguing invalidity due to prior sale, and re-exam does not consider evidence of prior sale. So the PTO’s denial doesn’t seem to moot the Supreme Court case.

  2. This could be fun. All the anti-software-patents people may be in a real dilemma here, deciding whether to support a patent that could cost Microsoft a big wad of money, or whether to support big-bad Microsoft.

  3. Jon-

    Right you are. Mea culpa. I revised the article at 1:20pm ET to take into consideration your comment.

    This could be a real mess. Would the Supremes rule limit the holding to 102(b) on-sale evidence, or perhaps best mode, which are rarely, if ever, actually in front of the Patent Office during prosecution? This could turn out to be one fine mess.

    Thanks.

    -Gene

  4. Perhaps the following point made during sicussion of Sham Reexamination Requests that I made at Patently-O should be considered here:

    There is an analogy from what Congress did here in the Reexam Statutes to the standard for the presumption of validity.

    Congress, knowing all the possible ways a patent could be in error, specifically and intentionally cabined the ability of the Office to correct errors and take away a patent’s presumption of validity in reexamination only in those cases and for the grounds of evidence that could be independently corroborated – those significant new questions of patentability traceable to patents and published articles.

    There is no doubt that that level of evidence belongs to a clear and convincing standard.

    Had Congress instead leaned towards a preponderance standard, there can be no doubt that the ability to inititate reexam would have been opened much further.

  5. “While that could make sense as part of a comprehensive patent reform effort that would at some point settle the rights of the patent and make the claims no longer susceptible to challenge after a prescribed number of years,”
    I don’t see any point being appropriate for that other than the expiration of a patent, and possibly a period of time so close to that point that by the time a patent is re-examined, it would have expired. Patents are given to inventors, and if adequate proof appears that the claimed inventor is not the actual inventor, then it doesn’t matter how long it’s been, the patent shouldn’t be valid anymore.

    @John Spevacek
    Opponents of software patents and opponents of Microsoft are not inherently the same set, although there is probably a lot of overlap. I think it’s also worth noting that Microsoft is not going to benefit from this, but will at best not be subject to a large punishment.

  6. @John Spevacek

    “This could be fun. All the anti-software-patents people may be in a real dilemma here, deciding whether to support a patent that could cost Microsoft a big wad of money, or whether to support big-bad Microsoft.”

    It wouldn’t be support one way or the other, as far as the “anti-software-patents people” go. The case by case view of a patent in question wouldn’t be based upon **getting even** with Microsoft nor **help**. A patent in question should be invalid if shown to be so, regardless if it helps or hurts.

    The “anti-software-patents people” you mention; I am not sure of all the people whom may or may not view patents in the same light can be grouped together. Reasons and the degree of those reasons on their own may face their own questions about if they are valid. The Law should seek to state a patent is invalid upon valid reason(s) ONLY, because any other way in my opinion harms the Law and so, serves no one.

  7. Gene,

    I suspect SCOTUS is going to rule that the “clear and convincing standard” doesn’t apply in all cases of patent validity. That SCOTUS is taking this case without asking for supporting briefs from DOJ is clear evidence that the “clear and convincing” standard won’t be applied in all such validity determinations.

    I’m also not opposed to SCOTUS saying the standard for validity is “preponderance of the evidence” where the “prior art” or in the i4i case, “on sale” bar, wasn’t considered before the USPTO. But if SCOTUS rules that the standard of validity is “preponderance of the evidence” in all cases, including those where the USPTO has considered the same “prior art,” we’re going to have a significant diminishing of the value of patent assets. That won’t be good for small businesses that depend on patent rights to compete against the Microsoft Goliaths. Also, there needs to be some consideration as to whether the unconsidered “prior art” is truly more relevant, rather than simply cumulative, before the standard of validity changes.

  8. Hi Gene,

    In light of this case, could you tell me a little more about the Solicitor General – more than the usual information I can get online. The SJ has been a bit of a mystery to me.

    In particular, what goes into the decision process of whether or not the SJ picks up a case? From the SJ website – “The Solicitor General determines the cases in which Supreme Court review will be sought by the government and the positions the government will take before the Court”.

    For example, the SJ decided to pass on the Angiomax / The Medicines Company 60 day Patent Extension debacle. Second, in the i4i case above, the SJ was “not requested to weigh in”. Who makes the call? Are political pressures involved (e.g., not wanting to pick up a case the SJ might lose)? Do Democrats “use” the SJ more than Republicans?

    As Always, Thank you. Rob

  9. Clear and Convincing is an evidentiary standard, and deals with questions of fact, not questions of law. In cases where the issue is whether a prior art patent makes the claimed invention obvious, that is a question of law, not a question of fact, so the C+C standard is only pertinent to the underlying factual inquiries:
    1.the scope and content of the prior art;
    2.the level of ordinary skill in the art;
    3.the differences between the claimed invention and the prior art; and
    4.objective evidence of nonobviousness.

    if there is a question of whether the prior art patent is genuine or not. I suppose it could also be applied for other factual findings that underpin the obviousness analysis, such as

  10. That won’t be good for small businesses that depend on patent rights to compete against the Microsoft Goliaths.

    It won’t be great news, but it won’t be the death knell some people are implying it will be.

    It’s only the dubiously valid patents that will be incrementally harmed as a result of such a change, the ones where there’s some evidence of their invalidity that falls between “pretty convincing” and “mighty convincing”. The strong patents will still be valid and enforceable, because it simply won’t be more likely than not that they’re invalid. Heck, i4i’s patent would probably still be valid and enforceable. It won’t affect anybody’s litigation costs either, because invalidity is already universally pleaded and argued in infringement suits, and it’s already subject to a do-over on appeal.

  11. “prior art not considered by the Patent Office should be treated differently than prior art considered by the Patent Office”

    That’s why we have reexam. MicroSft had their shot in reexam and the patent was upheld. They should just take their medicine and move on. All they do is gum up the legal system for everyone else.

  12. I agree with Part 1 of EG’s analysis but respectfully disagree with Part 2.

    As to Part 1: Of course SCOTUS took on this case with the intent of modifying the law and there is only one direction the modification can take: lowering the bar and making it harder for individual inventors and small business inventors to compete against the likes of MS (them with the gold get to amend the golden rule).

    As to Part2: Lowering the bar will create many unintended bad consequences. First, if you are a patent Examiner and you are thinking about going the extra mile in your search to find better art, why bother? Under the prepond-o-ev rule anybody out there can find more art and gum up the works for an issued patent. The PTO determination no longer means anything. So as a reasonable Examiner, you don’t (bother to do a better search).

    Secondly, “merely cumulative” is a cute phrase but can easily be overcome by pointing to any minute feature that was not in the PTO-applied art. Even if a prior art document is ultimately found to be “merely cumulative” , the fight for that conclusion will cost the patent owner a ton of money and you-know-who wins when it comes to a cash burn-rate battle of that kind.

  13. This case also offers another possible outcome. As others have pointed out elswhere, the on sale bar evidence could not have been considered by the PTO during examination or reexam, and there is a difference between art not considered (e.g., includes prior art publications) and art that could not be considered (e.g., offer for sale). If the Court ruled that the standard is lowered only for art that could not be considered, then there would not be any impact on patent prosecution. In particular, there would be no need for practitioners to deluge the PTO with prior art references. Also, there would be no need to analyze whether art presented at trial is merely cumulative with art considered by the PTO.

  14. I think that the SCOTUS is going to do away with the clear and convincing standard at least for unknown prior art or prior art arguments not squarely before the USPTO. To say that this would harm a patentee simply ignores the societal and public harm of a patent granted without consideration of all the pertinent facts.

    I actually welcome SCOTUS change here.

    The real question, of course, is what the net result will be of imposing such rule that rewards over-disclosure. I’d suggest that Examiners should be free to reject (more often) attempts to bury references by largely disregarding IDS that appear overly burdensome and permit Examiners to request that applicants explain relevance where there is such overwhelming disclosure. Afterall, if the rule is changed to “gold plate” disclosed/considered references, the patentee will have an incentive to do such disclosures correctly.

  15. The real question, of course, is what the net result will be of imposing such rule that rewards over-disclosure

    That’s not a real question. That’s a rhetorical question with a (painfully) known answer.

    permit Examiners to request that applicants explain relevance where there is such overwhelming disclosure

    Already tried. Failed. Ruled illegal. Next.

  16. Kale-

    You say: “To say that this would harm a patentee simply ignores the societal and public harm of a patent granted without consideration of all the pertinent facts.”

    That is nonsense, and I suspect you know that. It does nothing of the sort to point out that the Supreme Court will, once again, likely encumber the patent process in ways they clearly cannot understand.

    You say: “I’d suggest that Examiners should be free to reject (more often) attempts to bury references by largely disregarding IDS that appear overly burdensome…”

    Talk about ridiculous ideas. You want the Supremes to do away with the clear and convincing evidence standard for prior art not before the USPTO and then you want to prohibit the filing of prior art to the USPTO. What is clear is you are an anti-patent zealot who is trying to hold irreconcilable ideas in your head and pretend that they do reconcile.

    If the Supremes do away with the clear and convincing evidence standard for prior art not before the USPTO then Congress had better double or triple the Patent Office budget because patent attorneys will bury the Patent Office with prior art like you have never seen before. To do anything else would be malpractice, not to mention stupid.

    -Gene

  17. Rob-

    I’m not exactly sure I have many answers to the Solicitor General mystery. What I do know, however, is the Supreme Court can and with some frequency does ask the Solicitor General to file a brief prior to the granting of cert. The Supreme Court receives requests for cert., and frequently receives amicus filings either urging the granting of cert. or urging the denial of cert. The Supreme Court can and does essentially ask the Solicitor General to take a position on whether the Supreme Court should take the case and why. Historically, the views of the Solicitor General are quite persuasive, although certainly not always.

    Here the Supreme Court didn’t care what the Solicitor General thought and decided to take the case without asking for the US government to take a side. The Supreme Court only takes Federal Circuit cases to overrule them, or somehow alter them, so Microsoft will win this appeal — that is almost guaranteed. Further prove is that the Supremes didn’t even ask the federal government whether they should take the case, so they already seem to have made up their mind. Given that the Chief has recused himself it seems likely that they already have a majority who want to change the law.

    -Gene

  18. Ok, the Microsoft case involves an on-sale bar. Recall that the on-sale bar exists in our law because we think that once the invention has been on sale, customers and competitors see it and don’t see it claiming to be the subject of a patent, so it is available to copy, dedicated to the public. The patent should be killed, lest that justifiable reliance be deterred.

    With that policy in mind, we go after the patent that Microsoft is trying to kill as being on sale more than a year before the filing date. I don’t know the evidence, but let’s say that Microsoft finds two of the patentee’s former employees who get on the stand and say speaking totally from memory without and contemporaneous documentation that they witnessed a sale of X device before the critical date (which was ten years before the testimony) and that the X that was sold is what the patent covers. Patentee has a former employee witness that says yes, he remembers that X was on sale then but it was not what the patent covers. Nobody else can be found to testify about sales that may be invalidating or to shed more light on what X was.

    Should this patent be held to be invalid? Two to one the testimony is that the invention was on sale, but all of the evidence is based upon a memory of event ten years prior. Hmmm. The preponderance may be that the invention was on sale, but I doubt the evidence passes the clear and convincing test.

    Now, recall the policy: Is there enough evidence to support the premise that customers and competitors see the invention on sale and don’t see it claiming to be the subject of a patent, so it is available to copy, dedicated to the public? No, I think not. None of those customers or competitors have testified as to what they knew, saw, or believed about the patentee’s sale of X or its patenting, or as to the availabilty of X to them to copy. But the patent will die under the preponderance standard and live under C+C. Unless we think patents are inherently bad and should be killed at every opportunity, the facts of this hypothetical do not support the policy behind killing the patent.

  19. Cowboy,

    Thank you for explaining the basic facts of the case.

    If understood correctly, it is similar to that flower nursery case where someone shows up many years later with no corroborating evidence and swears on a stack of Bibles yea high that “the” invention was in public use or on sale more than 1 year before filing

    (BTW, rational for on-sale, IIRC and per Pfaff v. Wells, is that the invention was “ready for patenting” more than 1 year before and that rather than putting the patent app together and filing it during the 1 year grace period, the inventor commercially exploited the invention via a UCC recognized “offer” and did not file.)

  20. Careful step back and American Cowboy,

    Such carefully analytical and thoroughly thoughtful commentary may dampen my sales.

    I might have to throw out their the tidbit that a great many software engineers have so bought into a Mantra that patents are bad that they don’t recognize exactly why and can only parrot pet phrases such as the Article 8 preamble and (erroneously) determine for themselves just what “promote” means without any understanding of the legal nature of the word.

    We have plenty of I-slept-at-Holiday-Inn-last-night “legal” scholars who will schill out big bucks for that drink.

  21. And I can lay a wager on who will be first in line…

  22. @American Cowboy
    “None of those customers or competitors have testified as to what they knew, saw, or believed about the patentee’s sale of X or its patenting, or as to the availabilty of X to them to copy. But the patent will die under the preponderance standard and live under C+C. Unless we think patents are inherently bad and should be killed at every opportunity, the facts of this hypothetical do not support the policy behind killing the patent.”
    I think the real question would be which is a bigger concern: the patents wrongfully invalidated by preponderance of the evidence or the the patents wrongfully remaining valid under C+C. The numbers involved may be hard to nail down, but less/weaker patents would be the ‘safe’ route.

  23. Bingo !

  24. @BD
    Ah, I thought we were playing backgammon, no fair. But seriously, my argument wasn’t really about the deep legalities of the issue, so it doesn’t matter what my profession is. What is on the line is the patents that would be declared valid and invalid with the respective standards of proof.

  25. Step Back points out that : “(BTW, rational for on-sale, IIRC and per Pfaff v. Wells, is that the invention was “ready for patenting” more than 1 year before and that rather than putting the patent app together and filing it during the 1 year grace period, the inventor commercially exploited the invention via a UCC recognized “offer” and did not file.)”

    Yeah, I suppose that Pfaff said that, but why should the inventor’s commercialization instead of filing be such an evil that we have to kill his patent as the penalty? The eBay Court said that people who get patents without commericializing are deficient and should wind up with second-class patents since they are to be denied injunctions. So, getting the patent instead of commercializing is not the goal we are trying to incent.

    Really, what is the harm to society or the cosmos or the environment or whatever of waiting 368 days after the first UCC offer for sale to file a patent application? Recall that the trigger is the verbal or paper Offer for sale, not even an exchange of custody of a tangible item. On Sale bar jurisprudence over the years has acquired veneer after veneer of anti-patent strength. Why?

    We lawyers and Courts make a fetish out of on-sale invalidating, when most people view it as a technicality. I have had several clients over the years be surprised when I told them that the fact that they had their product on the market more than a year disqualified it from patenting. In fact, some say that once the invention has proven itself over time in the market, it is time to file for the time-justified patent.

    For that matter, think back to when you were in law school and first learned of the on-sale bar. Did it strike you as “natural justice?”

    So, back to C+C vs preponderance. My point is that the public policy goals of the on-sale bar are not sooooo strong that we should make it easy to ferret out and kill the patents that provide incentive to commercialize the technology (eBay tells us that is a good thing) and to disseminate the written description and enablement information about the invention.

  26. @American Cowboy
    It’s worth remembering that patents can be very powerful in changing the dynamics of a market, which is why comparisons to weapons are often made. We have very good reasons for having a limited time window on the time from commercialisation to applying for a patent, and we have very good reasons for not wanting people to just sit on patents. Inventions are meant to be utilized, so we have to be make very sure the patent system doesn’t get in the way of said utilization, and limit the usage of patents being used strictly as an anti-competitive measure. Using patents as a way of technically extending trade secrets is not in any way useful to society, and neither is using patents to keep technology OFF the market.

  27. Really, what is the harm to society or the cosmos or the environment or whatever of waiting 368 days after the first UCC offer for sale to file a patent application?

    The harm to society is that the patentee is unfairly extending his patent term by profiting from the invention while at the same time keeping it secret and preserving his right to later file a patent application with a later filing date.

    The on-sale bar forces the patentee to choose. We’re fine with giving him whatever he can secure by way of trade secret, or the usual 20-year term in exchange for his disclosure, but it was never part of the bargain that he should get both.

    Another issue is that selling an unpatented article (or disclosing an unpatented invention to the public) can be seen as a representation that the public may freely copy same. It’s not fair to give the public the invention and then take it away again. If you like, think of selling the invention to a member of the public without restriction as a sort of estoppel against later claiming an exclusive right. That’s why some countries have absolute novelty bars. You have to choose between keeping the invention for yourself or giving it to the public, and “neener neener” is not a valid legal argument.

    In both of those respects, even a year is generous. Absolute novelty is more intuitive, because it truly forces you to decide and it makes it apparent to the public at an earlier date which way you’ve chosen to go.

    In fact, some say that once the invention has proven itself over time in the market, it is time to file for the time-justified patent.

    In fact, some would quickly realize the problem with that timeline.

    The on-sale bar doesn’t tell you not to commercialize your invention. All it tells you is that you should file a provisional first. If you want a patent, ask the government for a patent. What could be clearer or simpler?

  28. Hi Gene,

    I cannot agree with your statement ” personally believe it is rather ridiculous to presume a patent valid based on prior art never considered.” If this is the case, then why should we even have a patent office. As stepback points out the review by the patent office then becomes meaningless. We should just replace the examination with a registration system then.

    No good can come from SCOTUS review here.

  29. Dale-

    We agree that nothing good can become of the Supremes reviewing here. I would prefer a review on the patent side like on the trademark side, perhaps without the opposition. What I really like from the TM side is the existence of incontestible status. If the Supremes want to do away with the presumption of validity for everything not considered fine, but then in exchange patent owners need incontestible status. If a litigation hasn’t been started or a reexamination initiated within X years (perhaps 3 to 5 after issue) then the patent is presumed valid as against everything. Another variety would be that after incontestible status is reached patent claims cannot be invalidated under 103.

    The point is this… I understand the logic involved, but if all we are going to do is chip away at the right of a patentee without giving something back then we will wind up like we were in the 60s and 70s, where little was patented and innovation really didn’t drive the economy. That would be a disaster for our economy, but those who know better seem hell bent on destroying the economy anyway.

    -Gene

  30. @Gene
    “If a litigation hasn’t been started or a reexamination initiated within X years (perhaps 3 to 5 after issue) then the patent is presumed valid as against everything.”
    Again, this seems quite dangerous. Under this standard (presuming I’m understanding your idea correctly), Red Hat would have lost the recent case to IP Innovation over virtual desktops regarding a patent issued in 1991. However, it was proven that the claimed inventor was never really the inventor (meaning the patent shouldn’t have been granted), even though this wasn’t recognised by courts until around the time of expiration.

    It would also seem to set up a concern of camping out until a patent becomes “bulletproof” and then demanding exorbitant fees. Currently we at least have some kind of check on the matter, since bringing a patent to court means that said patent might be invalidated.

  31. THEY MUST NOT CHANGE THE STANDARD

  32. could they use fake evidence to invalidate a patent?

    the court does not seem to understand the problem of economic espionage

  33. The fact is that even SCOTUS can’t do away with the presumption of validity (much as some of those Justices might like to)-that’s written in stone in 35 USC 282. Instead, SCOTUS is being asked to consider “whether the [Federa Circuit] erred in holding that Microsoft’s invalidity defense must be proved by clear and convincing evidence.”

    But contrary to how Microsoft presents the as “straightforward” it isn’t. What complicates that question is that the invalidity defense is based on an alleged “on sale” bar for which the testimony presented to the jury (another complication) is conflicting. Here’s a key paragraph from the Federal Circuit decision on that point:

    At trial, the jury heard conflicting testimony on whether S4 met the “metacode map” limitation [of the claims.} In evaluating the evidence, the jury was free to disbelieve Microsoft’s expert, who relied on the S4 user manual, and credit i4i’s expert, who opined that it was impossible to know whether the claim limitation was met without looking at S4’s source code. Although the absence of the source code is not Microsoft’s fault, the burden was still on Microsoft to show by clear and convincing evidence that S4 embodied all of the claim limitations. The jury’s finding of validity was supported by the testimony of the inventors (Vulpe and Owens), as well as their faxes to an attorney regarding the patent application.”

    So there you have it. What’s ironic is that even if the standard of validity is changed to “preponderance of the evidence” in this situation, that may not help Microsoft win its alleged “on sale” bar defense. Given that the testimony on this issue is conflicting, Microsoft may still win the “battle” with SCOTUS but lose the “war” when this case is returned to the courts below, including the Federal Circuit. Also, and an issue not mentioned by those commenting on Microsoft’s cert petition is that if Microsoft wins on the alleged “on sale” bar defense because of a different standard of validity, i4i faces a significant “inequitable conduct” problem because this alleged “on sale” bar situation is of its own making, and from what I can tell was never presented to the USPTO. Accordingly, the stakes (including pays attorney fees) goes even beyond i4i’s potential loss of a significant damage award.

    I’m also going to change my previous view about the standard for validity changing depending on whether the “evidence” (e.g., prior art, on sale bar, etc.) had or had not been considered by the USPTO. My reason for changing my view is the astute point made by others that this will create a significant incentive to dump as many references as possible on the USPTO to retain that standard of validity. That will simply create a new problem, namely whether such “dumping” of references can support an allegation of “inequitable conduct,” even though the changing standard of validity makes such “dumping” attractive. Put differently, changing the standard of validity from “clear and convincing” to “preponderance of the evidence” is the lesser of the two potential evils here.

    Given that the question before SCOTUS is far more complex than Microsoft makes it out to be, I not confident that SCOTUS will come out with anything other than another “muddled” ruling. The issues here are simply too subtle for SCOTUS to grasp with its “blunderbuss” approach to patent law. In fact, I predict that SCOTUS will come out with an opinion as fragmented and as perplexing as the one in Bilski. We can only hope SCOTUS won’t make a mess of it in the Microsoft case, but after string of “mudlled” decisions starting with KSR International and ending with Bilski, I’ve pretty much given up hope.

  34. If this is the case, then why should we even have a patent office.

    I’m constantly perplexed by people’s inability to compromise or see any middle ground. The patent system works fine in every other country in the world, with only a bare presumption of validity. In some cases, even with less thorough examination than we get from the USPTO.

    in exchange patent owners need incontestible status. If a litigation hasn’t been started or a reexamination initiated within X years (perhaps 3 to 5 after issue) then the patent is presumed valid as against everything.

    Gene, patents are not the same thing as trademarks. Trademarks that have been registered and in use for five years are ipso facto stronger, or “more valid”, because their validity depends on their presence in the public eye, and their existence inhibits the coexistence of confusingly similar marks. The mere passage of time does nothing to strengthen a patent. Also, a trademark registration requires actual use (which, in turn, strengthens the trademark), whereas an issued patent doesn’t even permit actual use (which, by itself, would do nothing to strengthen the patent). Why should a patent get a stronger presumption if it’s been sitting around idle for five years because the technology hasn’t reached the market yet? Who would even have had standing to litigate that patent, or any reason to request a reissue?

    If a patent is invalid, it should be invalidated, and we shouldn’t feel bad about it. An invalid but enforceable patent does nothing to promote the useful arts, and it hurts the economy. Unless that economy is contained within a one-foot radius around a patent litigator. A balance of probabilities standard won’t invalidate a bunch of good patents, any more than it invalidates a bunch of good trademarks or contracts now.

    Most importantly, as EG points out, the presumption of validity isn’t going anywhere. Nobody is even trying to get rid of that, and the patent system (even a registration system) couldn’t function properly without it.

  35. What exactly is the presumption of validity, if at the court level, the court will look at all the evidence (including the examiner’s work) and decide for itself on a mere preponderance? This is akin to a pure examination with a bigger dataset.

    In effect, this is saying that the examiner’s work is meaningless. And that correlates with no presumption of validity, which is precisely against the law. The mere mention in the law of this requirement for the presumption of validity logically dictates that that presumtion must be more than a preponderance standard.

    While not clear and explicit, the meaning here is not all that difficult to arrive at.

  36. What exactly is the presumption of validity, if at the court level, the court will look at all the evidence (including the examiner’s work) and decide for itself on a mere preponderance?

    It’s exactly what any other presumption is. It means that when someone insists in court that your patent is invalid, you get to say “oh yeah? prove it!” If they can’t prove it, you win.

    On the other hand, when you assert that your patent is valid, the infringer doesn’t get to say “oh yeah? prove it!” and smugly sit back to wait for your proof. Procedurally speaking, you are not responsible for the entirety of the prior art. As the holder of a presumed-valid patent, all you have to do is rebut any of the infringer’s evidence of invalidity, and then you win.

    The mere mention in the law of this requirement for the presumption of validity logically dictates that that presumtion must be more than a preponderance standard.

    Sure, if your “logic” ignores all the other areas of law that also have presumptions but are still decided on a preponderance standard. Like those other exclusive rights issued by the very same administrative body we insist is entitled to such high deference because it performed a search first.

  37. Gene,

    Excellent points. Certainty in property rights has significant economic value. The endless ability to argue over whether property rights were correctly awarded results in people being less willing to invest in and develop their property rights. We want people developing new technologies, not reinventing the wheel. Supposedly, this situation exists in New Mexico and Mexico, where title to land can be challenged going back 100s of years. As a result, banks are less willing to lend against the value of land.

    Inane,

    The patent systems in the rest of the world do not function just fine. None of these countries has nearly the same level of innovation as the US (when are patent laws are strong). In addition, these countries do not have nearly the number of patents held by individual inventors or small businesses. A SBA study shows that most disruptive technologies are originally developed by individual inventors or small businesses.

  38. None of these countries has nearly the same level of innovation as the US (when are patent laws are strong).

    High innovation, strong patent system. Noted.

    Great. Now, which of those is the chicken and which is the egg?

    A SBA study shows that most disruptive technologies are originally developed by individual inventors or small businesses.

    Well, good for them. A bare presumption of validity won’t make it any harder for them to get patents or license/litigate them, and disruptive technologies aren’t going to get invalidated on a balance of probabilities standard because they won’t be even close to anticipated.

  39. Anonymous at 10:27 raises an interesting point. If we just had a registraton system without examination, what would patent litigation look like? Unless some presumption of validity attaches to the patent, the patentee would have to convince the Court that nobody had created prior art that anticipated or made obvious what he has claimed. That burden in litigation is virtually insurmountable, since it requires proving the non-existence of prior art art.

    So, even with a registration system, there has to be some initial burden on the infringer to establish a prima facie case of invalidity, and the ultimate decision would be by a preponderance of the evidence. Seems like that is what would be the result if Microsoft gets its way with Scotus. So, if the statutory presumption of validity means anything more, it must be a higher burden on the infringer, such as C+C.

  40. Great. Now, which of those is the chicken and which is the egg?

    Does it matter? Your point is refuted.

  41. Inane,

    The answer as to which came first (increased innovation or a strong patent system) is clear. Before the advent of the modern patent system, the rate of increase in technology was so low we lived in a Malthusian world. This means that increases in technology were slower than increases in population and the average person’s income was stagnant. Additionally, those countries with weak or non-existent patent system do not have innovation. It is only the advent of a modern patent system that is correlated with significant increases in new technologies. For instance, Japan did not start innovating and see an increase in its per capita income until it adopted the US patent system in the 1870s.

    Note this is completely consistent with other property rights. If you have no property rights in land, then agriculture is very unproductive (see USSR and China collective farms). As soon as minimal property rights are introduced, the productivity of these farms increases by several factors. Property rights precede increases in productivity.

  42. Before the advent of the modern patent system, the rate of increase in technology was so low we lived in a Malthusian world.

    I accept your premise that the existence of a patent system promotes innovation.

    I accept your premise that stronger patent systems correlate with higher rates of innovation.

    I question your conclusion that stronger patent systems cause higher rates of innovation, because there are other, equally compelling reasons for the correlation. Higher rates of innovation make stronger patents more popular, which is very much a causal factor for a stronger patent regime in a democratic system.

    Besides, it’s pretty clear that even a merely adequate patent system is sufficient to promote all the innovation you’d need, especially when you realize that most of the innovation that produces US patent applications comes from overseas. Even from places like China, which I don’t think anybody believes has a particularly strong patent system, and which probably isn’t popularly associated with any real groundbreaking innovation since gunpowder.

  43. Inane,

    You are inane. No there are not equally compelling other reasons. Merely adequate does not work. See the US in the 1970s.

  44. See the US in the 1970s.

    You mean, back when the country was exactly the same as it is now, except for differences in the patent law?

    Correlation is not causation.

  45. @Dale B. Hailing
    It’s completely reasonable to think that a country with a powerful industry would want powerful protection in the patent field. Similar trends have happened with copyright. The US was arguably more dominant in media production than science during the 20th century, and for most of the 20th century, we had stronger exceptions, stricter rules for registration, and shorter terms than most of the then industrialized world.

    However, despite having weaker laws that apparently worked better than our peers, our copyright laws became increasingly stronger, due to established interests benefiting from said behavior.

  46. Inane,

    Correlation is not causation, but arguing that everything is correlation without proof is not logic. Property rights are always correlated with increased productivity.

    If you were going to invest in a house and there was a 50% chance you would lose in court on the issue of title vs. a 1% chance, in which case would you be willing to pay more for the house? It is straight forward logic, which you are clearly incapable of.

  47. arguing that everything is correlation without proof is not logic.

    Causation is a special kind of correlation. If you show nothing more than a correlation and insist that it’s causation, it’s perfectly logical and appropriate for me to point out that you skipped a step.

    If you were going to invest in a house and there was a 50% chance you would lose in court on the issue of title vs. a 1% chance, in which case would you be willing to pay more for the house?

    Here we go again, with the randomness.

    Invalidating patents in court is not random, no matter the standard of proof. It’s not a 50% chance out of a random number generator. It depends on the prior art for that particular patent, and anybody who is going to pay a significant sum for a patent should do his research first whether patents generally have a 50% “chance” of being found invalid or a 1% “chance” (presumably that 1% faithfully represents the “clear and convincing” standard?).

    When you buy a house, you look at the particular defect in the title to that particular house, rather than simply deciding that all houses have the same 50% chance that you’ll lose in court. You also have the particular building inspected, rather than relying on nationwide statistics for how often various structures in buildings fail. If you were investing millions of dollars in a business built on a patent, you’d do the same sort of research, or else you’d fully deserve to lose your money.

    Besides, even taken globally, a balance of probabilities standard isn’t a ~50% chance of invalidity. If it were, half of all trademarks and half of all contracts would be invalid. Instead, what happens in the real world is that the good ones (probably the vast majority) are upheld by the court, and only the bad ones are weeded out because the court was properly convinced they were invalid. The federal courts aren’t a reality show where 50% of the contestants have to get eliminated at every round. A good patent is still a good patent, by any standard of proof. In Europe, for example, they have a bare presumption and a balance of probabilities standard, and good luck invalidating a patent in court.

  48. IANAE suggests that when acquiring another’s patent, due diligence makes sense.

    Em is right, of course, but the diligence required when the preponderance standard is in effect is going to be greater than when the C+C standard is in effect, thereby driving up the cost of the transaction.

  49. the diligence required when the preponderance standard is in effect is going to be greater than when the C+C standard is in effect, thereby driving up the cost of the transaction.

    It requires exactly the same diligence. You would do the exact same search of the prior art, and consider the exact same art relevant using the exact same substantive law. No extra cost.

    It might tip the balance if you found some barely-persuasive prior art, but you probably wouldn’t want to take that chance in the current system anyway, if all you had to hang your hat on was the clear-and-convincing standard. At worst, you would price in a little more risk when buying the borderline patents (which are only as strong as your lawyer’s argument even under the current system, and might not have even been worth buying to begin with), or possibly walk away from them. It wouldn’t change anything for the really strong ones or the really weak ones.

  50. Property rights are always correlated with increased productivity.

    This is what we logical folks call “begging the question.”

  51. Wilton-

    Would you care to elaborate in a substantive manner?

    I am a “logical folk” and personally I don’t prefer cryptic messages that seem to be back-handed “as if” comments that dangle as if those who are really interested in a meaningful debate need to figure it out for themselves.

    -Gene

  52. @DB Halling (aka State of Innovation)

    Dale,

    You know that 80% of the time I agree with you. However, in the above you asserted:

    Property rights are always correlated with increased productivity.

    The good thing about that assertion is that it qualifies as a scientific hypothesis because it includes the word “always” and therefore it is subject to falsification with but a single example.

    The bad news is that the hypothesis is easily falsified.

    Example: Back in the day, before that pinko commie Abraham Lincoln came on the scene, Southern Plantation owners had “property rights”, including property rights in their slaves. In hindsight we know that such did not correlate with increased productivity for all “people”. (It did of course correlate with increased “productivity” for the plantation owner because he/she included in the “accounting” of their personal “productivity” the output of the slave machines. It’s all about how you do your “accounting” you know. ;-) )

    Same analysis can apply to Medieval noblemen and the serfs who provided “productivity” for the land properties owned by the noblemen.

    Sorry to rain on that parade.

    ______________________________
    p.s. As to your recent post on State of Innovation, how about this:

    Patents do indeed hobble “innovation” if by the word “innovation” you mean a kind of free-rider act of innovating where a second person takes for free the work product of others (of true first inventors) and presents it as something “new” that the free rider 2nd person attributes to himself and his productivity rather than giving fair attribution and fair compensation to the true creator(s) (aka inventors) of the “innovative” something that is being presented as new to the “innovation” receiving crowd.

  53. Willton probably means that the bare premise that “property rights are always correlated with increased productivity” is at best a circular proof of the statement that “this particular property right is correlated with increased productivity”, because it assumes the conclusion.

    Of course, the premise is axiomatically false, because if we cranked patent rights up to eleven (registration system, eliminate invalidity as a defense to infringement), we would undoubtedly see a dip in productivity. Unless we were all patent litigators.

    And even assuming the premise, it’s still merely a correlation and not necessarily a causation.

  54. Gene:

    For your benefit, begging the question (or petitio principii, “assuming the initial point”) is a type of logical fallacy in which the proposition to be proven is assumed implicitly or explicitly in the premise. The fallacy is committed when a proposition which requires proof is assumed without proof. More specifically, petitio principii refers to arguing for a conclusion that has already been assumed in the premise, in effect “begging” any listener to “question” the basis of the logic.

    For instance, Dale is positing that a strong patent system is the cause of increased innovation. Why? Because, according to Dale, “[p]roperty rights are always correlated with increased productivity.” That, Gene, is called “begging the question.”

  55. Wilton-

    Is that REALLY what “begging the question” means? Are you always so condescending? I would suspect someone who doesn’t know what they are talking about, and who is obviously uninformed, to be substantially more humble.

    Dale’s statement about a strong patent system causing increased innovation is correct, as all of the evidence on point shows. Perhaps you are new to commenting and reading information on the Internet, but it is not possible to write a thesis every time a true statement is made. Everyone in the industry who is a serious player knows that Dale’s statement is true, so that leaves me to suspect you are a novice.

    Dale has written an entire book explaining this, I invite you to check it out. I have written numerous times explaining this as well here on IPWatchdog.com. If you visit WIPO online you will find all kinds of evidence showing that strong patent protection leads to investment, job growth and the increased creation of innovative products and services.

    Since you seem to want to play logical games rather than inform yourself, why not chew on this… it is 100% logical to assume that granting rights that can be exploited and turned into revenue will provide incentive for more creation. If you can make a living doing it you don’t have to do it in your spare time. The fact that all evidence demonstrates that this clearly logical assumption is correct is just the icing on the cake.

    -Gene

  56. @Gene
    You often bring up how strong patents lead to job growth, but reality seems to differ. The jobs that the US loses tend to go to Latin America, India, or China, all of which have considerably weaker patent systems.

    “Since you seem to want to play logical games rather than inform yourself, why not chew on this… it is 100% logical to assume that granting rights that can be exploited and turned into revenue will provide incentive for more creation”
    That’s a very narrow approach. There are obviously some benefits to those that receive patents, or else nobody would seek them. However, these benefits do not come from a vacuum, and the cost to others has to be considered. The best approach is to consider the WHY behind patents.

    In a nutshell, the costs of being the initial developer of technology sometimes provide a competitive disadvantage to the firm that actually researches said innovation, making it a bad return on investment and dissuading firms in such a position from investing. Patents work by allowing patent holders to restrict the production of whatever is covered by the patent in a manner that can help them get a return on investment. This means that with an actively used patent, there are fewer vendors that sell the patented good or service, the price is higher, or both. These qualities are generally not socially desirable, so the ideal patent system will only create the amount of scarcity needed for security of an adequate return on the investment of research.

    The raw statement of more/stronger patents = better is ridiculous, because there are clearly diminishing returns on such as system (think of something like the 80/20 principle, with an idea like 80% of the innovation comes from 20% of the patents). You could contend that we haven’t reached the optimal point in patent strength yet, but that seems quite unlikely, especially since technological cycles tend to be getting shorter, and the tools available for production and distribution allow for getting more returns faster and having smaller investments.

  57. Bobby-

    There you go again. You must really love to compare apples and elephants, huh?

    You say: “You often bring up how strong patents lead to job growth, but reality seems to differ. The jobs that the US loses tend to go to Latin America, India, or China, all of which have considerably weaker patent systems.”

    Allow me to point out the obvious, or what is obvious to everyone but you… the jobs that go to those places are manufacturing jobs that pay little or nothing. For better or for worse our nation has determined we don’t need those and don’t want those low paying jobs. High paying jobs go where there is investment and that requires a stable legal regime that recognizes rights.

    I love how when I make an absolutely irrefutable point you either retreat to something like “correlation isn’t causation” or this time “that’s a very narrow approach.” Actually, Bobby, it isn’t a narrow approach. It is completely accurate and if you don’t get it then nothing I say will be able to penetrate. The undeniable truth is that we all need to make a certain amount of money. If you can make money from creating, whether that means inventions or arts, then you can do more of it rather than relegating it to a hobby.

    You say: “so the ideal patent system will only create the amount of scarcity needed for security of an adequate return on the investment of research.”

    Finally, after all this while you managed to say something correct. We agree. Pharmaceuticals and biotech innovations are so expensive that the 20 year time of exclusivity is far too short.

    You say: “The raw statement of more/stronger patents = better is ridiculous…”

    Only someone willing to ignore facts and history could believe that. Of course more and stronger patents is better. Read up on Bayh-Dole why don’t you. Patents have done extreme good and the only ethical society is one with a strong patent system. There is no other way around it. Of course, if you prefer to live in a society where there is no economy, there is no innovation, basic infrastructure technologies that provide clean water and the like don’t exist, then by all means seek out some third world country. The only ethical view is that as a result of a patent system private companies create and provide life saving treatments and cures, and the human condition becomes better and easier to bear.

    Please inform yourself.

    -Gene

  58. Gene,

    The first step of that process would be to let go of the preconceived notions that permeate his personal philosophy and color every post or argument.

    It’s just not going to happen. He is by far one of my biggest Kool-Aid customers and truly believes that he needs my Kool-aid in order to survive.

  59. @Gene
    I’ll get around to a more detailed response later, but you don’t seem to be acknowledging that patents have a heavy cost to society. They are justified only to the extent that their benefits outweigh their cost. Patents cranked up to 11, as IANAE put it, would be disastrous. If you can’t acknowledge this, than there is no hope for anything remotely close to intelligent discussion.

    I doubt even you would argue that a 100 year patent that can’t be invalidated and has a low standard of obviousness would be better than no patent system at all, even though it would be wonderful for those who have those patents (at least while wearing the hat of a patent holder). Am I correct in this assumption, or would you support such a system? Yes, this scenario is absurd, but your statement that “of course more and stronger patents is better” leads to this kind of conclusion without proper qualification of how it is conditional. Acknowledging that there is a point where the costs outweigh the benefits is the first step to a reasonable debate about patents.

  60. Bobby,

    You make some good points at #56
    However, you state them badly
    and thus don’t get your message through.

    What I think you are trying to say is that the patent system allows for a Jerome-Lemelson type of person who foresees where the industry is heading but has no intention of producing a working model of his invention. Instead he plans (with evil intent) to plant a road block along that highway to the future and to pop out as a surfacing submarine slash highway robber man with his hidden patent and hold up the “true” innovator when the latter person gets there.

    Is that correct?

  61. @Step Back
    That is one concern, and I touched on something similar around comment 26. There is also concern over things like using patents to make competitors less able to compete. Let’s say Edison had a small but necessary patent needed for an AC generator that could have effectively blocked Tesla/Westinghouse, and that they didn’t have a similar patent for DC to even the score. We could have ended up with an electrical grid that was inferior in most regards because of that behavior. The same kind of thing can happen with incompetence instead of malice. The Robertson screw was in many ways considered superior to the Phillips head screw, but Robertson was very strict about its licensing, leading to the Phillips head dominating in the US.

    Not all abuses and inefficiencies of the patent system are going to be that dramatic and influential, but if we have a patent system, we need to try and make it as efficient as possible, getting the public as good of a return on their investment of temporarily waived rights as we can.

  62. For better or for worse our nation has determined we don’t need those and don’t want those low paying jobs.

    Actually, our nation does need and want those manufacturing jobs, and always has. We just want them to be higher-paying instead of going overseas. It’s the employers who have all individually decided they don’t want those jobs here. It’s a tyranny of small decisions.

    Of course patents promote investment in new technologies, and the good ones turn into high-paying jobs for both the investor and the patentee who outsources the manufacturing to China. Of course some technologies would never exist in their current form without patents, as you’ve discussed at length in the pharmaceutical field. Nobody’s really disputing that. But that’s not the comparison here.

    The problem comes when you start comparing weaker patent systems to stronger patent systems, particularly when the “weaker” ones are still quite strong for the patentee. Once a patent system is strong enough to make innovation profitable, it’s not at all obvious that making it even stronger helps, particularly when the way you’re making it stronger tends to reward things that are arguably not even innovation, and particularly when we’re seeing more and more innovation coming to our shores from countries whose patent systems have the same standard of proof across the board that Microsoft is asking for here.

    Which leads to another problem with the reasoning – US patents are not restricted to US inventors or US innovations. The value of a particular US patent depends only on the claimed invention and the size of the US market. That’s why so many foreign companies file for US patents based on foreign-made inventions. Many US companies are already realizing this, and are outsourcing even their R&D – the “good” technical jobs, the ones people go to school for and expect to be well-paid for. The “innovation” we promote with our patent system might even conceivably happen in a place where there are no patents at all. A strong US patent system means more innovation, but it doesn’t necessarily mean more local innovation or more local employment.

    What we need for promoting local innovation is education, ambition, and curiosity. They’ve always done the trick in the past, and they will do us far more good within a perfectly adequate patent system than a much stronger patent system would do by itself.

  63. Actually, our nation does need and want those manufacturing jobs, and always has

    IANAE, your lack of real world experience shines through this comment. If you had an industry experience, you simply would not make such an overstatement.

    Bobby,

    One of the aspects of “blocking’ that you cannot seem to grasp as a fundamental part of the “promote” schema is that when someone is blocked, alternative paths are investigated and design-arounds are pursued. Your blind mantra to the unfettered access prevents you from seeing what is a benefit and in your mind paints it as a detriment. If you ever hope to unerstand patents and patent law, this is the type of mindset that you will have to overcome.

  64. @Blind Dogma
    If a workaround is better or has some advantages, then it would probably be worth researching on its own merit (and if it isn’t enough of an improvement to justify that research, then letting things remain the same is going to be more efficient). If it doesn’t have any serious advantages, it’s wasted effort and resources. Being blocked can end up being beneficial, but it can also end up being harmful. The ability for workarounds to occur (IF they can occur in a specific situation) is a relief from an ailment, not a benefit.

  65. Inane,

    There is absolutely no evidence for your position “The problem comes when you start comparing weaker patent systems to stronger patent systems, particularly when the “weaker” ones are still quite strong for the patentee”

    1) The value of a patent is related to whether it will hold up in court. The amount investors will pay (invest in) a business with a patent is based on its probability of being held valid and the probability that it will be found to infringe, when it is infringed, and the damages they will receive )or injunction). As a result, we have more investment in new technologies when we have a stronger patent system. To suggest otherwise is just idiocy on the level of the flat earth society.

    How much would you pay for a patent that had a 50% chance of being invalidated vs. a 1% chance.

    2) The economy only grows (per capita) if we increase our technological level. A weak patent system encourages people to make me too products that have little benefit to the economy.

    3) The evidence in the US proves that a weak patent system hurts innovation. See the 1970s and the 2000-2010 period, versus the 1980s and 1990s.

    Bluster is not reason or logic.

  66. @Dale B. Hailing
    If there are already enough incentives to encourage someone to do something, than adding more incentives is not productive. Say a certain project is being contracted out by a company to an individual. If they offer him $2000, it’s not worth his time, and he won’t do it. If they offer him $5000, he’ll probably do it, and if they offer him $7000, he’ll definitely do it. Offering him $10,000 is idiotic, and if the management becomes aware of this behavior, the one who negotiated has a good chance of being fired. Patents are less direct incentives, but they act in a similar manner, and the strength of a patent in various facets is in many ways similar to an amount of money offered for a project, and giving them too much is irresponsible in a similar manner.

  67. Bobby,

    We are giving out property rights not money. Properly defined property rights do not take anything away from the rest of society. The only way you could argue that our patent system provided too big an incentive is to suggest the term is too long. However, there is no empirical evidence for this point of view.

    A strong patent system ensures that we do not waste resources on me-too products. Which are also a waste of resources.

  68. @Dale B. Hailing
    Patents do take something from society. Namely competition, which is itself responsible for a lot of technological advancement. You might notice that once a patent on a pharmaceutical expires, the cost of the pharmaceutical drops drastically, even from the original company selling it. This is a big benefit for society, especially since it means more people get to make use of this pharmaceutical. The breadth of patents, the standards of obviousness, and the difficulty in invalidating a questionable patent all figure into the costs society bears, and we should be wary of the point at which we get diminishing returns that are no longer justifiable in all of these dimensions.

  69. IANAE, your lack of real world experience shines through this comment. If you had an industry experience, you simply would not make such an overstatement.

    Well, obviously it’s not better for industry to keep those jobs here, because industry would rather get the labor cheaper overseas. But it’s better for the country, because it would be more paid local jobs, which all those currently-unemployed or under-employed people could use to help buy things.

    No matter how strong the patent system is, not everybody can be a rich inventor. And even rich inventors need people with money to sell their inventions to. That’s why rich people have existed for some time, but truly wealthy people who didn’t inherit a bunch of land didn’t exist until there was a working and earning middle class to buy their stuff and buy the shares of their companies.

    The value of a patent is related to whether it will hold up in court.

    Yes, it is. A balance of probabilities standard doesn’t mean the judge flips a coin and tosses out every second patent. A good patent to a good invention will hold up in court no matter what the standard of proof. People will still invest in those good patents. Investment in technology isn’t going to suddenly dry up across the board just because some of the more borderline patents are now at risk. Those ones probably didn’t get much investment anyway, assuming the investors did their homework.

    If we want to promote innovation, we must first make sure that patents are tailored to protect innovation. People work to their incentives, and why bother to innovate if you can get something not-so-innovative through the PTO and then beat people over the head with it for money?

    The evidence in the US proves that a weak patent system hurts innovation.

    The evidence in the US proves that despite anything the US patent system does, most of the innovation in this country now comes from overseas, because foreign innovation gets the exact same benefits out of the system. If you want to argue that the US patent system promotes worldwide innovation, I won’t take the other side. But you’d have a difficult time explaining how buying clever devices invented by foreigners and manufactured by other foreigners helps our economy or our country in the long term.

  70. The economy only grows (per capita) if we increase our technological level. A weak patent system encourages people to make me too products that have little benefit to the economy.

    Right, except for increasing competition, diminishing market power, increasing production and driving down the price of such products, which benefits the consuming public. But who cares about what the public wants? [/snark]

  71. A strong patent system ensures that we do not waste resources on me-too products. Which are also a waste of resources.

    Tell that to the people who buy the me-too products. I’m sure those consumers are very happy to pay a lower price for such goods.

  72. One of the aspects of “blocking’ that you cannot seem to grasp as a fundamental part of the “promote” schema is that when someone is blocked, alternative paths are investigated and design-arounds are pursued. Your blind mantra to the unfettered access prevents you from seeing what is a benefit and in your mind paints it as a detriment. If you ever hope to unerstand patents and patent law, this is the type of mindset that you will have to overcome.

    If those design-arounds are merely done to escape liability from a patent and not because the design-around creates a superior product, then no, those design-arounds are not beneficial. The resources spent to pursue alternative paths for the sake of avoiding a patent infringement lawsuit are a dead-weight loss to the economy, as those resources could have been used to pursue more economically beneficial ends.

  73. Properly defined property rights do not take anything away from the rest of society.

    Yes, that’s the point. They need to be properly defined. Improperly defined property rights (e.g. a patent claiming what is more likely than not to be prior art) do take away from the rest of society.

    Part of that proper definition is in sections 102 and 103. We should let the courts apply that law, shouldn’t we?

  74. Bobby,

    Competition on me too products and technologies does not add much to society. We want people competing to build new technologies. If we could all ride in Model T’s for free would be as wealth as we are today? No. Patents ensure that people compete on new technologies which is what creates wealth. You are wrong.

  75. If we could all ride in Model T’s for free would be as wealth as we are today? No.

    By far the greatest innovations associated with the Model T were the ones that made it much, much cheaper than his competitors’ cars. That’s what made Henry Ford wealthy. He didn’t make his fortune by using patents to charge inflated prices for the products of his innovation.

    If he could have turned a profit giving them away for free, he would have done.

  76. @Dale B. Hailing
    Even just copying has an immense social value. Mass production is incredibly important to progress. The great thing about the Model T was not that it was the best car, but that Ford produced so many and sold them at low margins, resulting in far greater diffusion of a useful product.

    Now, if we are somehow able to produce physical objects with no cost (which seems to be at least vaguely what you are talking about with Model Ts), then we would be a society that has surpassed the problems of scarcity, which would be a wealth far beyond what we currently have. Research would likely occur at an even faster rate than before just to satisfy our thirst for knowledge.

  77. Bobby,

    There is little value in multiple firms making me too products. I clearly did not mean that manufacturing had no value.

  78. Competition on me too products and technologies does not add much to society.

    Tell that to the people who can afford such me-too products and technologies but cannot afford to purchase them from the OEMs. I imagine that the folks who require a daily regimen of medicine are very appreciative of and feel very enriched by the generic pharmaceutical companies that make such medicine more affordable than their brand-name counterparts do.

  79. Without the research, there would be no me too products. Me too products do not pay for the next break through product. You are short sighted and if we followed your advice we would all be driving Model Ts

  80. Dale,
    We aren’t going to get mass produced cheap products without multiple firms producing at least very similar products. The personal computer market exploded largely due to reverse engineering of the IBM PC BIOS and the competition brought by IBM PC compatibles, and this explosion by most accounts played a large role in the progress that happened in the 80s and 90s that you spoke of.

    There’s never been a sensible argument that we shouldn’t copy anything we didn’t originate ourselves without permission of the one who did. The argument is that by giving authors and inventors limited monopolies of appropriate scope, we end up with more and better stuff in the long run. There is undeniably a cost to society, but it’s okay if the benefits outweigh that cost. However, that means we need to make sure that the benefits actually outweigh the cost. Patents are effectively an investment by the government on behalf of society, and the government has a duty to get a good return on that investment. That means we want more innovation for less social cost.

    Patents having a cost to society is not a bad or evil thing, but it’s something that has to be weighed. Public schools have a cost, but there’s a good consensus that educating children to at least a certain level leads to said children being more productive, contribute more in taxes and innovation, are less likely to engage in crime, and thus, the cost of our public schools is seen as justified. However, we see a certain point at which providing an education is no longer worthwhile. We don’t let someone who has failed to graduate high school keep using those resources until they are 40 because the chances of getting a good return on our investment decreases the longer it takes them.

  81. Bobby,

    There is a difference between me-too products and building on other people’s work. You are incorrect about me-too products.

    The only cost to society for a properly run patent system is the same as any property system (Judicial, examination, and recording).

    A patent is not a monopoly, it is a property right.

  82. Without the research, there would be no me too products. Me too products do not pay for the next break through product. You are short sighted and if we followed your advice we would all be driving Model Ts

    Talk about hyperbole. Apparently you think that competitors would never try to one-up the competition if it weren’t for patents. I guess under your theory we would all be eating fast food if it weren’t for patents, as no one would ever want to create a product better than the lowest-common denominator. However, last I checked, new and innovative methods of preparing food weren’t heavily patented.

    I’m well aware of the benefits of research, but I am also aware of the benefits of competition, especially in fields where the barriers to entry are low. Perhaps you should take an economics course or two.

  83. The only cost to society for a properly run patent system is the same as any property system (Judicial, examination, and recording).

    Incorrect. Patents also have a tendency to chill innovation, as potential innovators are hesitant to explore how to make a better mousetrap for fear of infringing a patent on an old mousetrap. Further, the costs of trying to navigate patent thickets in very crowded arts can make the process of bringing a product to market cost-prohibitive.

  84. The evidence is very clear, without a property rights systems for inventions, technological progress happens at a rate that is slower than population growth. As a result, there is no net change in per capita income.

    The only people who benefit from a lack of property rights are thieves. If I steal your products and then sell them at a price cheaper than you, I have not increased wealth. This is true whether you steal people’s intellectual property or their physical property.

  85. Dale,
    The Compaq IBM compatible was as me too as they were capable of, and was probably technically inferior in a few regards. However, It was a catalyst that resulted in computers coming to the masses and not costing thousands of dollars.

    Yes, there is a cost to society. If patents provided benefit without costs, we would just hand them out left and right. You can argue that there is not a net cost because you get more out than you put in, but that is only true under the circumstances that you get more out than you put in. Don’t confuse a net benefit with having no cost.

    Also, intangibles cannot be stolen. Please don’t sink down to that level of deception.

  86. Don’t pretend theft is moral – clearly you can steal other people’s ideas. What is plagiarism?

    Since patents are such an inhibition to technology, why isn’t North Korea or Saudi Arabia the technology leaders of the world. They have weak or none existent patent laws.

    Your arguments have no basis in fact, logic, or reason. They are the equivalent of Marxists arguing that communism works better than capitalism – the evidence is overwhelming in both cases – open your eyes.

  87. What is plagiarism?

    Plagiarism is copying other people’s ideas. You can tell it’s not “stealing” the idea, because the guy who originally came up with the idea still has it.

    The closest you can come to stealing someone’s idea is filing a patent application on someone else’s idea. And if you succeed in doing that, the clear and convincing standard will make it much harder to remedy that theft.

  88. Those interested in this case should read The Barbed Wire Patent Case at http://supreme.justia.com/us/143/275/case.html before they firm up their opinions. Based on the Syllabus of that case, for Microsoft to win, a complete reversal of this case will be required: “When an unpatented device the existence and use of which are proven only by oral testimony is set up as a complete anticipation of a patent, the proof sustaining it must be clear, satisfactory and beyond a reasonable doubt.”

  89. Yes, you can steal someone’s ideas. Plagiarism is not just copying it is stealing.

    Using someone else’s invention without their consent is theft – you took something you did not create and you did not get consent to use it. Note it is not theft to think about someone else’s invention, it is not theft to understand their ideas, but it is theft when you make an embodiment of their invention. This is completely consistent with real property. You can even think about stealing someone’s real property, but if you do not act on it there is no theft.

    If you want to complain that are present system for adjudicating patents is too expensive, takes too long, is run by idiots who do not understand patent law or technology, you get my vote. If you want to complain that a patent office that takes 3-10 years to issue a patent is obscene, that the cost of obtaining a patent is way too high, you get my vote.

    BUT IF YOU WANT TO ARGUE THEFT IS MORAL OR GOOD FOR THE ECONOMY – YOU ARE AN INANE

  90. because the guy who originally came up with the idea still has it.

    I just don’t understand whta the movie and music people are complaining about – they still have their “idea”.

    /off sarcam

  91. @Dale
    Plagiarism is claiming to have done something you haven’t done. If something was ‘stolen’ in such a scenario, it would be credit, but fraud is a more appropriate term than theft. Patent and copyright infringement are also copying. You’ll note that nobody who engages in any of these activities is convicted for theft in that instance. Theft isn’t even the best analogy, as trespassing fits it much better. However, infringement is not trespassing either.

    “Since patents are such an inhibition to technology, why isn’t North Korea or Saudi Arabia the technology leaders of the world. They have weak or none existent patent laws. ”
    Those countries have considerable issues with various literacies, personal freedoms, and other issues including infrastructure. They are not even democracies. If you think their problem is primarily their patent system, you are delusional.

    Also, please calm down. We’re trying to have a rational conversation.

  92. Using someone else’s invention without their consent is theft – you took something you did not create and you did not get consent to use it.

    That’s not what theft is at all. Of course, I could be wrong. It’s been a while since my first year of law school.

    Theft is normally understood as taking property that is owned by another person, with the intent of depriving that person of same. Ideas aren’t property (patents are, but you don’t take a patent by infringing it), and you don’t deprive someone of an idea by also using it (nor do you deprive someone of a patent by infringing it).

    I’m not saying that stealing people’s ideas is moral. All I’m saying is that not every immoral action is a theft.

  93. Also, please calm down. We’re trying to have a rational conversation

    Dale does not appear to be capable of such a feat.

  94. “Theft is normally understood as taking property that is owned by another person, with the intent of depriving that person of same.”

    A patent is a property right – perhaps you didn’t learn that. So is a copyright. So you have taken someone’s property.

    Property rights are a relationship to other things. Title to a property defines that you are the owner of those set of rights. Taking those rights from someone else is theft, whether do so by changing the legal relationship without their consent or you take something physically from someone.

  95. Using someone else’s invention without their consent is theft – you took something you did not create and you did not get consent to use it. Note it is not theft to think about someone else’s invention, it is not theft to understand their ideas, but it is theft when you make an embodiment of their invention. This is completely consistent with real property. You can even think about stealing someone’s real property, but if you do not act on it there is no theft.

    That’s not theft; that’s infringement. Theft is the taking of one’s property with the intention of depriving same from the rightful owner. When one uses an inventor’s invention, rightly or wrongly, the inventor is not deprived of the possession or use of his invention. Products of the mind are not scarce commodities; they can be shared ad infinitum and still not diminish the inventor’s ability to make and use it. Therefore, products of the mind cannot be the subject of theft.

    Patent law more appropriately sounds in the law of tresspass: an infringer is trespassing (i.e., infringing) on the exclusive right of the patentee. If you want to call an infringer “a trespasser”, you would be more correct than calling one “a thief”.

    I suggest you stop creating bogeymen if you want to be taken seriously.

  96. not deprived of the possession or use of his invention

    But the possession, nay even the use of the invention is not the object of the transgression, now isn’t it? As all you patent attorneys know.

    If you want to be taken seriously, you actually have to be talking about what the violation is. The mantra of “products of the mind cannot be the subject of theft” only shows an ignorance of what patent law means. Simply, it is not the products that makes the violation – the violation is the property right (and as Dale alludes to, property rights have two shades – the physical and the relationship) to exclude. That right to exclude is in fact “taken”, and even though the products may be replicated, and shared ad infinitum, the taking of a single one destroys that right to exclude.

    Patents are not property of a physical nature. One can even say that a patent is an abstraction. But make no mistake, they are property. Just not the property that people are centering their arguments on here.

    Now recommence the discussion.

  97. Wilton-

    I don’t know where you come up with your misguided ideas. Patents dont chill innovation, they promote it. People don’t give up when there is a patent. They seek to improve the invention and patent the improvement thereby preventing the underlying patent owner from utilizing the improvement without themselves infringing. That happens all the time. To pretend patents chill innovation is to ignore history, facts and economics.

    -Gene

    Sent from iPhone.

  98. Wilton-

    So is one who engages in willful copyright infringement a thief?

    Make no mistake, those that willfully infringe are no different than thieves. They are taking the exclusivity guaranteed. There is frequently no amount of money that can repay the lost time because a patent is a wasting asset. That is why injunctions are more freely granted in IP cases than in other cases.

    You are missing the entire business backdrop, which is interesting since you are suggesting that others take a class in economics. Your positions come with a health dose of ivory tower attached and not nearly enough practical understanding.

    -Gene

    Sent from iPhone.

  99. Dale,

    You don’t have to shout.

    There are people who do the hard work of actually inventing new and enabled things.

    And then there are the people who sit in their arm chairs and brag about how “we” went to the moon.

    Both camps are present in this conversation.

    It’s not that hard to tell whom is who.

  100. Your positions come with a health dose of ivory tower attached and not nearly enough practical understanding.

    This would explain the correlation between the views expressed by Willton and those expressed by IANAE.

    It appears that attacks from the Ivory Tower are being coordinated. One does not even need to step back to see this.

  101. Stepback,

    Point taken

  102. @step back
    Inf the modern world, virtually everyone is a creator of something that could be labeled as IP, so trying to make an us and them argument is foolish. For example, the comments in this thread are automatically copyrighted, so everyone posting here is technically an author.

    There are clear legal differences between theft and infringement, and there are large technical differences. Even the most generous estimation of harm caused would put a single copy created in an infringing matter as less harmful than a single copy stolen for any good with a production cost. Most importantly, there are countless things that are bad besides theft, so infringement not being theft says nothing about the effects of infringement. There’s no reason to make the comparison except for a deceptive emotional ploy that plays on ignorance.

  103. that plays on ignorance

    And heaven knows that Bobby plays there often enough.

    Have another glass everyone.

  104. Give it a rest, BD. Theft and infringement are distinct actions.

  105. Bobby-

    If there is no reason to compare theft and infringement then why do YOU?

    You say that theft is more egregious than infringement, and you say that as if it is actually true and cannot be debated. Actually, the exact opposite is true. When someone steals a copy they injury the seller, not the creator. There is a single physical wrong, so harm is isolated. When one infringes they steal from the creator the exclusivity the law guarantees. So that is clearly if a far greater magnitude because if the societal implications. We give rights to encourage creation because we have decided that more innovation and mire art is desirable. So those who steal from creators and cause damage make it more difficult for them to make a living creating and thus will create less. In the business context infringement can and frequently does cause the creator to go out if business, putting employees out if work. This is particularly true when the creator business is a small business and the infringer is a large or well funded enterprise.

    So it is clearly the greater overall harm to infringe. And, by the way, I’m not playing to ignorance, just trying to educate you in hopes you won’t be so ignorant on the issues yourself.

    Sent with iPhone, sorry for any typos.

  106. @Gene
    Dale was the first to compare infringement to theft. I said they were distinct, which they are. People have a an established negative response to stealing, so if you call infringement stealing, then people are likely to respond negatively even if no damage can be shown. Any problems with infringement have to stand on their own if we want to have useful laws regarding them. Copyright and patents are regulations, and excessive regulations are a real threat to progress and innovation, which more than anything, need room to breathe. The Library of Congress recently released a report suggesting that our current US laws may get in the way of preservation of historical audio recordings, resulting in the permanent loss of our cultural history if the laws are followed to the letter.

    When I make comparisons of the damage caused, I generally try to be very specific, because scale can greatly change the dynamics. I specify that a fair comparison of the acts themselves would be comparing a certain amount of copies stolen against a certain amount of infringing copies made. Stolen copies bear a cost of production for the producer, while infringing copies do not. Let’s say a CD sells for $10, cost $1 to produce, and for simplicity’s sake is only sold directly by the artist (in most scenarios, the cost of theft is passed on to the producer of the good, making it less direct but still about the same effect). If someone steals 100 CDs from the artist and distributes them, the highest estimate would be $1000 in damage and the lowest would $100. If someone makes 100 copies and distributes them, the highest estimate would be $900 and the lowest estimate would be $0.

  107. Bobby-

    Your inability to understand basic concepts that you comment about is astonishing to me.

    Do you realize that infringement and counterfeiting creates billions of dollars in damage every year to companies? How many jobs are lost? How many creators can’t survive?

    Wake up!

    -Gene

  108. I am not claiming right here that infringement doesn’t cause harm, but rather that the harm caused is almost certainly less than the kind of harm that equivalent levels of theft would cause. Now, you might have a reasonable argument that all of the infringement that occurs causes more damage than all of the theft that occurs, but that’s more of an issue of the scale on which they are occurring, not on the act itself. The annual amount of littering done in the US may result in more damage than the annual amount of damage done by high speed car chases, but a single act of littering is by most metrics less damaging than the average high speed car chase.

    Of course, the effects of infringement are incredibly difficult to quantify (even the effects of copyright and patent laws themselves are fairly difficult to get good, scientifically controlled data on), so it’s very hard to get good numbers on the subject, but the recent GAO report on the matter suggests that the industry figures can’t be substantiated, and that there are both positive and negative effects to the matter. So, really, nobody knows how many jobs are lost and how many authors and inventors have trouble remaining in their profession, but it’s probably far less than industry figures would lead you to believe.

  109. Bobby,

    Gene has already shown that infringement causes more harm than most theft. Morally, theft is depriving someone of their property rights. If you are only saying that the law does not define infringement as theft – you are partially right. It is true with respect to patents but incorrect with respect to copyrights. Purposeful patent infringement is theft morally, there is intent and you have deprived someone of their property rights. Purposeful ignorance that one is infringing is also morally theft, there is intent to not know and you have deprived someone of their property rights. Innocent infringement is not theft morally, but once informed (and given reasonable time to evaluate) it is the same as purposeful infringement.

  110. Purposeful patent infringement is theft morally, there is intent and you have deprived someone of their property rights.

    Even morally, infringement doesn’t deprive the patentee of his property rights. You’d think this would be obvious enough from the mere fact that the infringer does not deprive the patentee of his right to sue the infringer. Nor does the infringer obtain or purport to exercise the right to sue anyone else for infringement, which is really the only significant attribute of patent ownership.

    The only objectionable thing the infringer is doing is something the patentee never had the right to do in the first place – practicing the claimed invention. Whatever you want to call that, it’s very different in character from theft.

    Is it a morally bad activity in violation of the patentee’s exclusive right, that costs the patentee time and money, and for which the patentee has a cause of action for damages and an injunction? Sure it is, but so is punching the patentee in the face, and that’s not theft either.

    Calling it theft is just going to make theft seem cool, the same way people think piracy is cool now.

  111. Inane,

    You don’t know what property rights are. An infringer is depriving the inventor his right to exclude others from, making, using, selling, etc his invention.

    Morally, an infringer is stealing the work of others without paying for it.

  112. This is morally vacuous:

    which is really the only significant attribute of patent ownership.

    The only objectionable thing the infringer is doing is something the patentee never had the right to do in the first place – practicing the claimed invention.

    Plain wrong. Completely wrong.

  113. An infringer is depriving the inventor his right to exclude others from, making, using, selling, etc his invention.

    Suppose A has a patent. B and C both infringe.

    Does B’s infringement deprive A of his right to exclude B? Of course not. If it did, A would have no cause of action against B.

    Does B’s infringement deprive A of his right to exclude C? Of course not.

    Does B act with the intention of depriving A of his right to exclude C? Does B act with the intention of himself excluding C? Of course not.

    A still retains the enjoyment of all significant aspects of ownership of the patent, namely the right to sue B and C and anybody else for infringement.

    Violating a right and willfully depriving someone of a right are not the same thing.

  114. A right is not the same thing as a right to sue

  115. A right is not the same thing as a right to sue

    A patent right more or less is.

    More importantly, a right to sue means you still have the right you’re suing on. That’s the difference between infringement and invalidity, for those of you scoring at home.

  116. No it is not. A right to exclude is not a right to sue to exclude.

    The right to exclude someone from you land is not the right to sue them. You sue them because they did not respect your rights and to have your rights enforced. The courts do not make rights they enforce them.

  117. A right to exclude is not a right to sue to exclude.

    No, but the fact that you can sue to exclude them presupposes that you have a right to exclude. That is to say, nobody has deprived you of that right.

    If someone punches you in the face, you can sue them for violating your right to not be punched in the face. But you still have that right despite that violation, which is why you can also sue the next person who punches you in the face.

  118. This type of semantics is better left at Patently-O.

  119. @Dale
    “Gene has already shown that infringement causes more harm than most theft”
    No, he hasn’t. Actual theft removes from the rights holder the exclusivity the law gives and has clear societal implications. The cost of theft is built into prices.

    “It is true with respect to patents but incorrect with respect to copyrights. ”
    No, it is true in regards to both. Sometimes copyright infringement is a criminal action, but it still isn’t legally defined as theft. There are lots of criminal actions that are not theft, such as drunk driving, murder, and vandalism.

    Theft is not a good analogy, because the rights holder still retains the right to exclude. Think of land. If someone camps out on your land for a week without your permission, they are infringing on your right to exclude others from using your land. They might even cause damage to your land in the process. However, nobody sane calls that ‘land theft.’

  120. Anyone who is familiar with IANAE’s version of patent law would be quick to recognize his anathema towards what the actual patent right is and his all-too-willing desire to exchange that right either for a court remedy or a right to sue.

    Long (and purposefully conflated arguments) are available at the aforementioned Patently-O.

  121. IANAE’s version of patent law

    In my version of patent law, you sue the infringer for a violation of your right to exclude.

    In Dale’s version of patent law, you sue the infringer to recover the right to exclude that he has stolen from you.

    Which of those two versions do you think most faithfully represents what really happens?

  122. It is so clear now, my right to life is the right to sue someone for taking my life. Just because they killed me doesn’t mean that they have violated my right to life, I still have the right to sue them.

  123. Just because they killed me doesn’t mean that they have violated my right to life, I still have the right to sue them.

    Of course they’ve violated your right to life. That’s what I’ve been saying. What they haven’t done is stolen your life, despite all the colloquial appeal of the phrase “taking a life”. Nobody has your life in a jar somewhere that your estate would be suing to recover. If the coroner isn’t available to testify, they can’t make larceny stick as a lesser included charge.

    You see, there are other things besides theft that we also recognize as being morally and legally wrong. That’s why criminal law isn’t a one-day course.

  124. Where did my life go?

  125. Your life would be destroyed and no longer exists. If you want to compare it to something else, it would be vandalism, not theft. You really need to widen your vocabulary of criminal offenses.

  126. From Wikipedia. The actus reus of theft is usually defined as an unauthorized taking, keeping or using of another’s property which must be accompanied by a mens rea of dishonesty and/or the intent to permanently deprive the owner or the person with rightful possession of that property or its use.

    An infringer clearly intends the unauthorized using of the owner’s (patent holder) invention. Thus it is theft – your convoluted attempt to say otherwise is not based on logic or reason, so we have to assume it based on a political point of view.

  127. An infringer clearly intends the unauthorized using of the owner’s (patent holder) invention.

    Yes, if he’s a willful infringer, but his property isn’t the invention. His property is the patent, which the infringer is neither taking nor keeping nor depriving him from using in any way.

    The patentee doesn’t even have the right to use the patented invention, so that’s not something that can be taken from him.

  128. Dale,
    The law clearly states that they are different acts (because they are). If you disagree, try and get a judge to convict an infringer of theft. The practices are different, and you are the one that is trying to shoehorn infringement into theft, even when trespassing and vandalism are much better fits (but still wrong).

    The claim here isn’t that infringement is okay, but that it is distinct from theft. Calling murder ‘theft; would be just as inaccurate, even though murder is generally considered worse. The only reason to conflate infringement and theft is because you don’t feel that you could actually back the problems of infringement on their own merits. If you can, there’s no reason to use the same term for two very different things.

  129. Bobby,

    I already made the point that the law does not define patent infringement as theft.

    But morally it is theft.

  130. It seems to me that a SCOTUS ruling in Microsoft’s favor in this case would likely have numerous significant repercussions for patent litigation — for instance, (1) it could leave many more patent holders vulnerable to harassment by excessive litigation from large corporations; (2) it would probably serve as the basis for invalidating many patents post-issuance; and (3) it could give the FTC more leverage in ending reverse-payment settlement agreements. I think this is a case in which the Court should very seriously and carefully the policy basis of the current law and the consequences if it is overturned.
    http://www.generalpatent.com/media/videos/patent-suits

  131. But morally it is theft.

    “Morally, patent infringement is (insert crime here).” So what? There oughta be a law against patent infringement? How does it advance the discussion of patent infringement in any way that you morally disapprove of an activity that is already actionable in the same way as you disapprove of a different and not even analogous activity that is also actionable? If you’re trying to make patent infringement seem as bad as theft, you will look silly and fail, in the same way as the people who tried to equate copyright infringement with piracy (which is worse than theft).

    Who cares if you personally disapprove of patent infringement in the same way you personally disapprove of theft, even though they’re different? Tell it to your therapist. Or, if other unlawful acts are also morally theft, tell it to your thethief.

  132. The natures of the two acts are very different, which is why the methods of dealing with them are different. If it is morally wrong, than the evidence should be able to stand on its own. We don’t need to call murder theft to see it as wrong. We don’t need to call fraud theft to see it as wrong.

    If it’s a ‘divine right’ or something similar to you that can’t be empirically proven as damaging, keep it in your house of worship or move somewhere where they respect it to the same extent, if you can find such a place.

  133. I already made the point that the law does not define patent infringement as theft.

    But morally it is theft.

    Last I checked, this is not a blog about morals. Furthermore, you are not the arbiter of morality, so stop acting that way.

  134. This type of semantics is better left at Patently-O.

    Sorry, we’ll dumb it down next time for you regular readers of IPWatchdog.

  135. Willton-

    You are perhaps one of the most arrogant individuals I have encountered here on IPWatchdog.com, and that is not something I will tolerate moving forward. The discourse here is kept high because people like yourself who choose not to substantively engage are sent on their way.

    Debate on IPWatchdog is open to all who are willing to substantively contribute, and latitude is given for those who are passionate so long as they contribute substantively. As far as I can tell you have not contributed substantively, and now you are insulting others.

    This is a warning, and the last one you will receive. Either you will engage with civility and substantively, or you will be banned. The choice is yours.

    -Gene

  136. I’m arrogant? Have you read some of your own comments lately? Allow me to quote a few passages from some of your comments:

    Quote #1:
    “Bobby-

    Your inability to understand basic concepts that you comment about is astonishing to me. “

    Quote #2:
    “So it is clearly the greater overall harm to infringe. And, by the way, I’m not playing to ignorance, just trying to educate you in hopes you won’t be so ignorant on the issues yourself. “

    Quote #3:
    “Allow me to point out the obvious, or what is obvious to everyone but you…

    I love how when I make an absolutely irrefutable point you either retreat to something like “correlation isn’t causation” or this time “that’s a very narrow approach.” Actually, Bobby, it isn’t a narrow approach. It is completely accurate and if you don’t get it then nothing I say will be able to penetrate.”

    And all that was from just this thread. Imagine what I might find if I look through every thread in which you posted within the last month!

    I don’t know what vendetta you have against Bobby, but if you want to preach civility, I suggest you take a bit of your own medicine. Otherwise you have no business judging others who come to your blog and comment in the same fashion as you do.

  137. Upon further assessment, it seems we can agree on a few things:
    Legally, infringement is not theft. There’s not much room for debate there, even though Dale made such an incorrect claim in comment 109.
    From a moral or damage perspective they are not equivalent. Gene and Dale claim infringement is worse, and I claim theft is worse. While we can’t agree on which is the more egregious, we do appear to agree that they are not equivalent. Therefore, calling X a case of Y is an exaggeration, and calling Y a case of X undermines the severity of Y.

    Both of these are disrespectful, so even though which is X and which is Y is not settled among us, calling infringement ‘theft’ is clearly incorrect behavior just as calling littering ‘murder’ or murder ‘littering’ would be.

  138. Wrong, people did not consider making unauthorized copies of software stealing. Governments do not consider it stealing when they cause inflation, but that is exactly what it is. When governments steal money from one person to bail out another person (Wall Street) it is theft even if there is no statute against it.

  139. Governments do not consider it stealing when they cause inflation, but that is exactly what it is.

    Are you saying it’s a “stealing” under the Fifth Amendment? Because it sure sounds like we all agreed (including you) that none of those things are actual theft, and now you’re trying to stretch the term even farther.

    You know what? I disapprove of excessive drinking. I’m going to start calling it “theft”. Also, displaying any portion of an episode of Jersey Shore in my presence is hereby deemed “theft”, even if there is no statute against it. People don’t consider it theft, but that’s exactly what it is.

  140. Theft is defined under the law as:

    The actus reus of theft is usually defined as an unauthorized taking, keeping or using of another’s property which must be accompanied by a mens rea of dishonesty and/or the intent to permanently deprive the owner or the person with rightful possession of that property or its use.

    Just because a statute does not follow the definition of theft, does not mean it is not theft logically and morally. Theft is not defined by what governments arbitrarily call theft. This is not Alice in Wonderland. Words have meaning, even if the government does not pass a stature that follows the meaning.

  141. Dale,
    Under the law, infringement is not theft, so repeating the legal definition that the courts don’t find to be correct isn’t going to change things. You’ve already claimed that infringement is proven morally worse than theft, so by your own terms, you are undermining patent and copyright infringement by belittling it with the term theft.

  142. should have been
    “that the courts don’t find infringement to fit” instead of “courts don’t find to be correct”

  143. unauthorized taking,

    Taxation is by definition not unauthorized, no matter how the government later uses the money or whom they give it to.

    “Causing inflation” isn’t even a specific action, it’s a result. It doesn’t imply a particular action or a particular mens rea, and even the result isn’t anything like taking or theft. Causing death isn’t always murder, for example, but causing death is much closer to murder than causing inflation is to stealing.

    Copying software isn’t taking because nothing is taken.

    This is not Alice in Wonderland. Words have meaning,

    You might consider using the words with those meanings in mind. So far, you’re not even close.

  144. Willton-

    Allow me to try, once again, to explain the rules of comment on IPWatchdog.com.

    Rule 1: If you contribute substantively great latitude is provided. If you do not contribute substantively little or no latitude is provided. You do not contribute substantively, so that means you are walking on the edge. Cryptically picking apart in back handed, “I’m superior to you” ways is not appropriate when the individual provides no substance. Bobby and I go back and forth, and he goes back and forth with many others. Yes, we take shots at each other, but at the core Bobby’s comments are substantive, although I think misguided in most cases. Because he is a regular and has built up a lot of comment credibility and shows a willingness to engage even when things get heated, he is given great latitude in his comments, and I think he holds his own admirably although I don’t typically agree with him.

    Rule 2: Those who do not use their real name are provided very little latitude. Yes, the Internet allows for individuals to remain anonymous, and that is fine. I know who you are (took me 30 seconds to find you online) but others here do not know who you are. Thus, you are anonymous to the group. That means you are not going to get a wide berth.

    When you combine Rules 1 and 2 together it is clear that you are not contributing to the dialog in the way that is deemed acceptable here at IPWatchdog.com.

    Finally, as for the comments you picked of mine back to Bobby, it is interested how you pick only portions of the comments and are not pointing out the substance. You are also pointing to things that are not at all controversial, and are fair and accurate characterizations, particularly with #3. You also miss the point that Bobby lead with calling people ignorant, hence my slap back at him as a portion (and only a portion) of what you quote as #2.

    Let me give you this advice. If you want to continue commenting on IPWatchdog.com then only say things that you would be willing to say to the face of others if you were to meet them in person at an industry event. We both know that with your level of inexperience you would NEVER say the things that you have said here to anyone of us at an industry event. With your level of inexperience you should really be seeking wisdom, and not pretending to be superior to those with decades of experience. Whether you want to admit it or not, the truth is that you have been condescending, snide and arrogant. You do not provide insight, you only pick others apart in a nebulous way that does not convey meaning. Your communication skills seem insufficient for a full and fair debate, and you should probably be spending more time learning your craft. I can’t imagine how you are contributing here would be deemed acceptable at your firm. Nevertheless, if this type of commenting is what you want to engage in there are plenty of other places on the Internet where you can go. I won’t allow IPWatchdog.com to devolve into that chaos.

    -Gene

  145. Are you boys through peeing on each other?

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